By law, federal judges must swear or affirm that they will “do equal right to the poor and to the rich.” This frequently overlooked oath, which I call the “equal right principle,” has historical roots dating back to the Bible and entered US law in a statute passed by the First Congress. Today, the equal right principle is often understood to require only that judges faithfully apply other laws. But that reading, like the idea that the rich and poor are equally barred from sleeping under bridges, is questionable in light of the equal right principle’s text, context, and history.

This Article argues that the equal right principle supplies at least a plausible basis for federal judges to consider substantive economic equality when implementing underdetermined sources of law. There are many implications. For example, the equal right principle suggests that federal courts may legitimately limit the poor’s disadvantages in the adjudicative and legislative processes by expanding counsel rights and interpreting statutes with an eye toward economically vulnerable groups. The equal right principle should also inform what qualifies as a compelling or legitimate governmental interest within campaign finance jurisprudence, as well as whether to implement “underenforced” equal protection principles.

More broadly, the equal right principle should play a more central role in constitutional culture. The United States is unusual in that its fundamental law is relatively silent on issues of economic equality. The equal right principle can fill that void by providing a platform for legal and public deliberation over issues of wealth inequality. Through judicial confirmation hearings and other forms of public contestation, the equal right principle can help to specify federal judges’ legal and moral commitments toward the poor.

Introduction

Each justice or judge of the United States shall take the following oath or affirmation before performing the duties of his office: “I, ______, do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as ___ under the Constitution and laws of the United States. So help me God.”1

During the confirmation hearings for then-Judge John Roberts, Senator Richard Durbin asked about economic equality. “Would you at least concede,” Durbin asked, “that you would take into consideration that in our system of justice the race goes to the swift, and the swift are those with the resources, the money, the lawyers, the power in the system?”2 “Absolutely,” Roberts replied. After all, “the judicial oath talks about doing justice without regard to persons, to rich and to poor.”3 So it’s “critically important,” Roberts continued, “to appreciate that there are going to be interests who, for one reason or another, don’t have the same resources as people on the other side.”4

Roberts was referring to the statutory oath of office taken by every federal judge.5 In the Judiciary Act of 1789,6 the First Congress required that all federal judges “solemnly swear or affirm” that they would, among other things, “do equal right to the poor and to the rich.”7 That statutory oath requirement, which I call “the equal right principle,” remains in place today.8 Remarkably, the language in question long predates the United States. For centuries, British judges were instructed to “do equal right to the Poor, and to the Rich.”9 And similar injunctions appear among the ancient judicial duties set out in the biblical texts of Exodus, Leviticus, and Deuteronomy.10

What does this evocative oath mean? On its face, the command to “do equal right to the poor and to the rich” has several components. Its reference to “equal right” connotes some form of impartial justice, or fair treatment with respect to legal decision-making.11 And in applying not only “to the poor” but also “to the rich,” the oath conveys that even vast disparities in wealth must be met with “equal” provision of “right.”12 In short, the equal right principle obligates federal judges to honor an unspecified form of economic equality. That basic idea can be fleshed out via either of two broad approaches.13

The first broad approach emphasizes formal equality. A weak version of formal equality would assert a straightforward directive: federal judges must apply other laws without regard to disparities in wealth. In other words, federal judges should simply follow separate sources of law, wherever they lead.14 Federal judicial duty would thus be unchanged if Congress had omitted any mention of “the poor” and “the rich” and had instead demanded, for example, equal right “to the short and to the tall.” In fact, this reading would cast the equal right principle as a merely rhetorical flourish, because the federal judicial oath includes separate commitments to impartiality and lawfulness.15 A stronger version of formal equality is also possible, as the equal right principle could be read as a statutory ban on considering wealth disparities or accommodating poverty. These arguments are not merely hypothetical. Courts, legislators, and scholars have enlisted formal equality readings to oppose judicial “empathy” for the poor.16 And those readings could call into question such entrenched accommodations as the precedential norm in favor of generously construing pro se filings.17

On the second broad approach, the equal right principle might obligate federal judges to foster some measure of substantive equality by taking account of economic disparities. This second approach is really a cluster of related approaches, as there are many ways of defining and implementing substantive economic equality. The equal right principle might demand greater counsel rights, so that the judicial process itself does not unduly contribute to economic inequality or compound its effects.18 Or the equal right principle might support a statutory canon in favor of economic equality, whereby ambiguous statutes are construed to promote the interests of “the poor.”19 Finally, the equal right principle might inform federal courts’ case law under the Equal Protection Clause or the Free Speech Clause—two areas that have struggled lately with issues of economic equality.20 For instance, the equal right principle might inform the kind of reasons that judges should regard as legitimate or compelling within the confines of campaign finance doctrine.21 Or the equal right principle could support federal judicial activity in areas characterized by constitutional “underenforcement.”22 Already, versions of the substantive reading appear intermittently in US law, from trial court rulings to recent Supreme Court opinions.23

This Article explores the possibility that the federal judicial oath calls for some measure of substantive economic equality. While barring group favoritism, the federal judicial oath may demand consideration of economic disparities that threaten justice or “equal right.” This basic approach is at least defensible under conventional principles of statutory interpretation.24 Historical versions of the equal right principle coincided with judicial efforts to promote substantive equality.25 And even if the equal right principle were originally understood to command nothing more than formal equality between economic groups, that reading would be readily contestable today. The equal right principle is written in broad, open-ended language and so is not limited by historical expectations. And current understandings of politics, economics, and justice plausibly support a substantive view of what it means to “do equal right to the poor and to the rich.” Thus, federal judges could plausibly read the equal right principle to call for substantive economic equality. That legalistic conclusion is likely to be of practical significance to at least some judges—namely, to jurists who are prepared to pursue substantive economic equality on a given issue, but only provided a stronger positive-law basis for doing so.

Moreover, confirmation hearings and other forms of public contestation might specify the equal right principle’s meaning. The equal right principle is a promise as well as a statute, and the meaning of a promise generally depends on how its speaker and audience understand it.26 This promissory aspect introduces a distinctive avenue for legal reform: by clarifying the public understanding of federal judges’ oaths, public contestation could specify those judges’ moral obligations. This point is most vivid during judicial confirmation hearings, in which popularly elected senators often ask prospective judges to make various representations regarding their future official conduct.27 If senators glossed the federal judicial oath as a substantive principle and prospective jurists agreed, then those public statements would shape the moral content of the jurists’ subsequent oaths. The equal right principle thus offers a platform for deliberation on economic equality. Moreover, successful use of this deliberative platform could influence who is selected for the judiciary, as well as those judges’ sense of their obligations regarding substantive economic equality.

Whether viewed as a statute or a promise, the equal right principle offers a distinctive way of addressing the institutional and moral position of federal judges within a constitutional system characterized by economic inequality. As argued below, the equal right principle operates in tandem with federal judges’ more general oath to adhere to law; therefore, the equal right principle is best understood not as a basis for overriding clear legal rules, but rather as an interpretive aid that should shape jurists’ implementation of other laws.28 Under that approach, federal judges can attend to their oaths without overstepping their authority or exerting control over economic matters traditionally governed by the political branches.29 Implementation of the equal right principle entails normal adherence to statutory law and so does not rest on a constitutional Lochnerian view that judges should govern economic policy. Moreover, the equal right principle offers judges useful guidance regardless of how best to answer broader questions of economic efficiency30 or welfare egalitarianism.31 Doing “equal right” in federal court is simply not the same as redistributing or equalizing wealth in society at large.32 In drawing attention to previously neglected legal, political, and moral possibilities, the equal right principle creates new avenues for lawful reform.

Greater attention to the federal judicial oath can also help bridge a rift that has developed between politics and legal practice. Problems of extreme wealth and poverty have become salient subjects of political controversy, as illustrated by the recent presidential campaigns of Senator Bernie Sanders and Secretary Hillary Clinton, as well as by the economic populism sometimes expressed by President Donald Trump.33 Yet American legal culture currently lacks any clear basis for reasoning and deliberating about economic equality.34 In fact, the United States is unusual in having a fundamental law that is relatively silent on matters of economic equality.35 That constitutional silence makes it difficult for either the adjudicative process or public contestation to reckon systematically with issues of economic justice. The equal right principle can help address that difficulty. As part of a venerable federal statute that explicitly addresses economic inequality, the equal right principle offers a focal point for both legal reflection and political mobilization.36 Attention to the federal judicial oath can prompt federal judges and other participants in the legal system not just to subscribe to class neutrality in the abstract, but also to confront the legal and practical relationship between two class-based groups: “the poor” and “the rich.”

The argument proceeds in three parts that respectively explore the equal right principle’s history, its legal meaning today, and its potential implications for the future.

2. See Nomination of John G. Roberts Jr to Be Chief Justice of the United States, Hearing before the Senate Committee on the Judiciary, 109th Cong, 1st Sess 448 (2005) (“Roberts Hearings”). Roberts also referred to the phrase “Equal Justice Under Law.” See notes 233–34 and accompanying text.

8. Federal judges also take the general federal oath to “support and defend the Constitution.” 5 USC § 3331.

9.The Book of Oaths and the Several Forms Thereof, Both Ancient and Modern 176 (1689). See also Part I.B.

10. See Part I.A. See also Alvin K. Hellerstein, The Influence of a Jewish Education and Jewish Values on a Jewish Judge, 29 Touro L Rev 517, 525 (2013) (noting that the federal judicial oath “resonates Biblically”).

12. To the extent that the equal right principle requires a working definition of “the poor” and “the rich,” other sources of federal law supply useful benchmarks. See, for example, San Antonio Independent School District v Rodriguez, 411 US 1, 19–20 (1973) (identifying the poor as those who “because of their impecunity [ ] were completely unable to pay for some desired benefit, and as a consequence, they sustained an absolute deprivation of a meaningful opportunity to enjoy that benefit”); US Department of Health and Human Services, U.S. Federal Poverty Guidelines Used to Determine Financial Eligibility for Certain Federal Programs (Jan 26, 2017), archived at http://perma.cc/LR6J-YL46.

13. See Aviam Soifer, Law and the Company We Keep 134, 167 (Harvard 1995).

14. See, for example, Patterson v McLean Credit Union, 485 US 617, 619 (1988) (per curiam) (interpreting the equal right principle as requiring that the Court treat all litigants equally, without regard to the worthiness of the litigant in terms of extralegal criteria), which is discussed in Part III.B. See also Original Great American Chocolate Chip Cookie Co v River Valley Cookies, Ltd, 970 F2d 273, 282 (7th Cir 1992) (Posner) (noting “the judicial oath, which, echoing Deuteronomy, requires judges to judge ‘without respect to persons,’” and arguing that “[t]he idea that favoring one side or the other in a class of contract disputes can redistribute wealth is one of the most persistent illusions of judicial power”); West v Louisiana, 478 F2d 1026, 1033 (5th Cir 1973) (“To ‘administer justice without respect to persons, and do equal right to the poor and to the rich’ we must apply the same standard, whether counsel be court-appointed or privately retained.”), quoting 28 USC § 453.

22. See Lawrence Gene Sager, Fair Measure: The Legal Status of Underenforced Constitutional Norms, 91 Harv L Rev 1212, 1218 (1978) (arguing that Rodriguez rested on “arguments which support the underenforcement of the equal protection clause by the federal courts”).

23. See, for example, Griffin v Illinois, 351 US 12, 16–19 (1956) (Black) (plurality) (citing a biblical version of the equal right principle in holding that “[d]estitute defendants must be afforded as adequate appellate review as defendants who have money enough to buy transcripts”); United States v Cilins, 2013 WL 3802012, *3 (SDNY) (concluding that the equal right principle “is violated if a defendant, who is a serious risk of flight . . . is permitted to buy his way out of detention”), citing 28 USC § 453; Williams-Yulee v Florida Bar, 135 S Ct 1656, 1666 (2015) (quoting the equal right principle while upholding a state rule prohibiting judicial candidates from personally soliciting campaign funds).

27. See notes 2–4 and accompanying text. See also, for example, Nomination of Elena Kagan to Be an Associate Justice of the Supreme Court of the United States, Hearing before the Senate Committee on the Judiciary, 111th Cong, 2d Sess 231 (2010) (“Kagan Hearings”); Nomination of Judge Sandra Day O’Connor of Arizona to Serve as an Associate Justice of the Supreme Court of the United States, Hearings before the Senate Committee on the Judiciary, 97th Cong, 1st Sess 57–58 (1981) (“O’Connor Hearings”).

31. See, for example, Frank I. Michelman, The Supreme Court 1968 Term—Foreword: On Protecting the Poor through the Fourteenth Amendment, 83 Harv L Rev 7, 9 (1969). For a theory built on republican government, see Jon D. Michaels, Note, To Promote the General Welfare: The Republican Imperative to Enhance Citizenship Welfare Rights, 111 Yale L J 1457, 1459–60, 1498 (2002). For more discussion of the evolving scholarly treatment of poverty rights during the last fifty years, see generally Mark A. Graber, The Clintonification of American Law: Abortion, Welfare, and Liberal Constitutional Theory, 58 Ohio St L J 731 (1997).

32. The best critics of constitutionalizing economic equality recognize that some accommodation for the poor may be practicable. See Cross, 48 UCLA L Rev at 923 (cited in note 29) (“It is possible that some particular right, or some circumstances, might escape this critique.”); Winter, 1972 S Ct Rev at 85 (cited in note 29) (“To reject general and substantial redistributions, however, is not to reject all redistributions.”).

35. See, for example, Cass R. Sunstein, Why Does the American Constitution Lack Social and Economic Guarantees?, in Michael Ignatieff, ed, American Exceptionalism and Human Rights 90, 92 (Princeton 2005) (“The constitutions of most nations create social and economic rights, whether or not they are enforceable. But the American Constitution does nothing of the kind.”); William E. Forbath, The New Deal Constitution in Exile, 51 Duke L J 165, 168 (2001) (“These social and economic rights are found in most of the world’s constitutions; but they are foreign to contemporary American constitutional law.”). But see Stephen Gardbaum, The Myth and the Reality of American Constitutional Exceptionalism, 107 Mich L Rev 391, 446–53 (2008) (arguing that US exceptionalism in this area can be overstated).

36. See Liu, 61 Stan L Rev at 212 (cited in note 28) (“Judicial recognition of welfare rights must derive its legitimacy from our shared commitments. . . . [W]e cannot hope to change our law without first doing the hard work of changing our politics.”). See also K. Sabeel Rahman, Domination, Democracy, and Constitutional Political Economy in the New Gilded Age: Towards a Fourth Wave of Legal Realism?, 94 Tex L Rev 1329, 1332 (2016) (noting, in the context of economic equality, the relationship between “the ‘big-C’ Constitutionalism of Supreme Court doctrine, precedent, or textual interpretation” and the “‘small-c’ . . . constitutionalism” of “social movements” and “public philosophy”).